Published tribunal order
Tenancy Tribunal case 4504851 — Rent arrears at 81 Wade River Road, Stanmore Bay, Whangaparaoa 0932
Decided 30 Aug 2023 · Published 30 Aug 2023 · Application 4504851
- Rent arrears
- Cleanliness
- Property damage
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the second-named tenant’s name and identifying details.
- Kimberley Rowland and [Tenant 2] are to pay the sum of $249.55 to Barfoot & Thompson Property Limited As Agent For Chris Harrison & Sarah Langford immediately, as set out in the table below:
Reasons
- Both parties attended the hearing. The landlord attended in person represented by Liz Lawson. The tenants appeared by phone.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- At the hearing Ms Rowland explained the [Tenant 2] had left the tenancy in July 2022 and was not responsible for any of the issues raised in this application. She said that she had entered into discussion with the landlord to remove [Tenant 2] from the tenancy but nothing ever eventuated. She was concerned that this application should not affect [Tenant 2].
- The tenancy agreement names both Ms Rowland and [Tenant 2] as tenants, and in the absence of any amendments they both remain liable (jointly and severally) for any compensation payable to the landlord.
- However I do accept that [Tenant 2] was not personally responsible for any of the issues raised by the landlord in this application. There is no public interest in the publication of her name. I have therefore exercised my discretion pursuant to Section 95A(4) of the Residential Tenancies Act 1986 (“RTA”) to suppress her name.
Did the tenants comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
- The tenancy ended at a difficult time for Ms Rowland. She says that she was not in a position to move a trampoline and so agreed that the landlord should dispose of it. The landlord has produced an invoice for the removal of the trampoline in the amount of $109.25 and I order payment of this amount.
- Ms Rowland also accepted that she ran out of time to complete the cleaning required to return the property to a “reasonably clean and tidy” state. The landlord has produced photos of the beginning of the tenancy and at the final inspection. Having reviewed the photos I find that the property was not left reasonably clean and tidy.
- A tenant is required to leave the property reasonably clean and tidy but they do not need to leave it in perfect condition, ready for a new tenant to move in. I therefore do not consider that the tenants should be liable for the entire “end of tenancy” clean invoice produced by the landlord for the amount of $718.00. I estimate that the amount of $300.00 properly compensates the landlord for the amount of cleaning required to bring the property up to the “reasonably clean and tidy” standard.
- The reasonably clean and tidy standard also applies to the outside of the property. The landlord claims that the lawns were very overgrown and produced an invoice for the lawns in the amount of $240.00.
- The tenant said that she mowed the lawns only three weeks before she moved out. The exit photos show the lawns to be in reasonable condition. The invoice for lawns is in fact for a lawn clean-up nearly two months after the tenant moved out. In the circumstances I do not consider this claim proved.
- Ms Rowland accepted that rubbish was left behind, which was evident from the photos produced by the landlord. The landlord produced an invoice for various odd jobs, which included rubbish removal. I order the amount of $200.00 for rubbish removal which includes the tip fees and an estimate of the time required on the basis of the invoice (which lists five hours but includes various other jobs, which I consider below).
- The amounts ordered are proved.
Is the tenant responsible for the damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- The landlord alleged that the following damage was caused during the tenancy: Carpet
- The landlord produced photos of the carpet at the start of the tenancy and of the carpet downstairs and the end of the tenancy, which showed it to be very soiled. The landlord only produced one photo of the upstairs carpet at the end of the tenancy (one bedroom), which does not appear to show any damage.
- The photos from the start of the tenancy show it to be in very average condition and the entry condition report from the start of the tenancy records wear and marks (for example Bedroom 3 which records “Carpet pulling. Pink and blue marks. Rust spots”). The damage to the carpet in the downstairs area is proven but I do not have sufficient evidence of the damage to the upstairs carpet.
- The landlord attempted to clean the carpet downstairs which I consider was a reasonable step to take. The landlord produced an invoice in the amount of $345.00 for carpet cleaning. Ms Rowland accepted that the carpet, at least downstairs, was not left clean. I order payment of this amount.
- The landlord says that the cleaning was not successful and that they have had to replace all of the carpet at a cost of $8,053.00 but are claiming $1,729.50 (which I was told is the landlord’s calculation based on their own estimate of depreciation).
- I am told that the carpet was 6 and a half to 7 years old. The IRD depreciation schedules estimate that carpet in residential premises has a usable life of approximately 8 years. Having reviewed the photos at the start of this tenancy I consider that the carpet was already very worn at the start of the tenancy and likely due for replacement. In addition, the damage to the upstairs carpet has not been proven. In the circumstances I make no award for the carpet.
- I note for completeness that at the hearing I was told that the landlord had not been able to claim on their insurance policy. I was later provided with a copy of the insurance policy, which records an excess amount of $1200, but was not provided with any further information regarding the landlord’s attempts to claim. As I have found that the carpet was at the end of its useful life the issue of insurance does not arise. Painting and repairs
- The landlord provided various close-up photos of walls and doors but no equivalent entry photos or many of the areas. The entry photos showed the walls to be in fairly average condition at the start of the tenancy in any event and the entry condition report records numerous holes, marks and repair patches. Most of the marks in the exit photos appear to be general wear and tear.
- The tenant accepted that a hole was accidentally made in the master bedroom while she was moving her furniture out, and that the dog had scratched the back of the bathroom door (and the door frame).
- The landlord had produced an invoice in the amount of $4,025 for painting and repairs but I am unable to accept much of the work included in this invoice as the damage has not been proven. I estimate $200 to be reasonable for painting the hole in the bedroom (noting that the plaster repair has been claimed separately) and the bathroom door and surrounds. Repair hole in wall, blinds, hinges, door handles
- The landlord produced an invoice in the amount of $636.22 for the repair of the hole in the wall, and the repair of blinds hinges and door handles. This invoice also included the rubbish removal ordered above.
- The landlord did not produce entry/exit photos of the blinds, hinges and door handles that proved the claim. The tenant had already accepted the hole in the wall. I order the sum of $30.00 for patching the wall. Vanity
- The landlord produced photos showing the bathroom vanity in good condition in the start of the tenancy, but with dark brown staining all over the top at the end of the tenancy as though dye had been spilt all over it. The tenant accepted this damage which she said was caused by clove oil that she did not know would cause staining.
- The landlord explained that they were unable to replace only the basin and so have had to install a new vanity, using the existing tapware. They have produced an invoice in the amount of $1,368. I accept that the landlord had to replace the vanity but am not prepared to order payment of the full sum by the tenants as there is some degree of betterment as the landlord now has a new vanity. The vanity was in good condition at the start of the tenancy and so in the circumstances I consider that compensation of $800.00 to be reasonable. Front door - glass
- The landlord has claimed $172.00 for replacement of the glass in a pane in the front door. The tenant accepted the damage which she said was done deliberately by an unwelcome guest. I order compensation of $172.00 accordingly. Filing fee and suppression
- The landlord has had some success but at a far lower level than claimed. I consider that it is reasonable to award the filing fee of $20.44 to the landlord and so have done so.
- I do not consider that either party has been the successful party. The landlord has proved some claims and not others. In the circumstances neither party is entitled to an order for name suppression. I have however suppressed the name of the second-named tenant in the application, due to her limited involvement in the issues before the Tribunal. Amendment to order
- This order was originally issued on 22 June 2023 and recorded a bond held of $2,840. However following the hearing the landlord advised that the amount held, following an earlier deduction for rent arrears, was in fact $1,927.14. Following a short phone hearing this order has been amended with the consent of both parties.